Citation Nr: 1802135 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-28 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Entitlement to service connection for tinnitus. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran was scheduled for a hearing before a Veterans Law Judge (VLJ) at the RO in Houston, Texas in November 2017, but failed to attend this hearing. Accordingly, the Board finds that the request for a hearing has been withdrawn. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran's left ear hearing loss is etiologically related to the acoustic trauma he sustained in active service. 2. The Veteran does not have current right ear hearing loss for VA purposes. 2. The evidence is at least in equipoise as to whether the Veteran's tinnitus is etiologically related to the acoustic trauma he sustained in active service and to his hearing loss. CONCLUSIONS OF LAW 1. The criteria for service connection for left ear hearing loss are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for right ear hearing loss are not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 3. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met. The Veteran has not alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, VA's duty to notify is satisfied. As to VA's duty to assist, the Board finds that all necessary development has been accomplished. Therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and pertinent post-service treatment records were obtained, and he was accorded two relevant VA examinations. With regard to the claim for service connection for right ear hearing loss, which is being denied herein, the Board acknowledges that a supplemental statement of the case (SSOC) was not issued after the October 2013 VA audiological examination. Significantly, however, the results of this audiological evaluation, as they pertain to the Veteran's right ear, are similar to the results of the earlier VA audiological examination of his right ear in February 2011. Accordingly, a remand of this issue to accord the agency of original jurisdiction (AOJ) an opportunity to readjudicate this claim by issuing an SSOC is not necessary. Significantly, neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For the purpose of applying the laws administered by VA, impaired hearing will be considered a disability when the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). The Board acknowledges that the lack of any evidence of hearing loss during service is not fatal to the Veteran's claim. The laws and regulations do not require in-service complaints of, or treatment for, hearing loss in order to establish service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Instead, "where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post-service test results meeting the criteria of 38 C.F.R. § 3.385." Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Merits The Veteran seeks service connection for bilateral hearing loss and tinnitus due to hazardous noise exposure in service. After a thorough review of the evidence, the Board finds that service connection for left ear hearing loss and tinnitus is warranted. The Board notes, however, that service connection for right ear hearing loss is not warranted as the record does not show evidence of a current right ear hearing impairment pursuant to 38 C.F.R. § 3.385. In February 2011, the Veteran underwent a VA audiology examination. He reported deafness and ringing in his ears due to military noise exposure, including firearms, machine guns, mortars, naval guns, helicopters, tanks, heavy artillery, combat explosions, demolitions, and aircraft engines. His puretone threshold values were as follows: Hertz 500 1000 2000 3000 4000 Right 15 15 10 15 15 Left 80 80 75 95 90 The Veteran's Maryland CNC speech recognition scores showed 98 percent in the right ear and 12 percent in the left ear. The examiner diagnosed the Veteran with normal right ear hearing and left ear sensorineural hearing loss. The examiner opined that the Veteran's left ear hearing loss was not a result of military noise exposure. She also opined that the Veteran's tinnitus was not characteristic of noise-induced tinnitus. The examiner based her opinions largely on the facts that the Veteran did not demonstrate hearing loss in service and did not develop hearing loss/tinnitus on the side of his body that he reported to have experienced the grenade explosion. The Veteran most recently underwent a VA audiology examination in October 2013. At that time, he reported in-service noise exposure consisting of participation in combat activity, firing weapons, and exposure to a close proximity grenade. His puretone threshold values were as follows: Hertz 500 1000 2000 3000 4000 Right 10 10 5 10 10 Left 85 75 75 75 90 The Veteran's Maryland CNC speech recognition scores showed 100 percent in the right ear and 0 percent in the left ear. The VA examiner diagnosed the Veteran with normal right ear hearing and left ear sensorineural hearing loss. Thereafter, the examiner opined that it was at least as likely as not that the Veteran's left ear hearing loss was a result of noise exposure experienced while serving in the military. The examiner also indicated that the Veteran had recurrent tinnitus and opined that tinnitus was at least as likely as not a symptom associated with hearing loss. The basis of the examiner's opinions was the Veteran's credible reports of being in close proximity to a grenade explosion in service. In light of the foregoing evidence, the Board finds that the Veteran does not have current right ear hearing impairment. See 38 C.F.R. § 3.385. Accordingly, absent probative evidence of a current hearing loss disability, there can be no valid claim of service connection for right ear hearing loss, and the claim must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the preponderance of the evidence is against the claim for service connection for right ear hearing loss, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In contrast, however, the Board finds that for purposes of establishing a current disability, the record shows credible evidence of left ear sensorineural hearing loss and recurrent tinnitus. As such, for these claims only, Shedden element (1) is satisfied. As for Shedden element (2), the Veteran contends that he was exposed to hazardous noise as a result of an in-service close proximity explosion from a trip wire. He also reported that he participated in combat activity. Significantly, the Veteran's DD-214 indicates that his military occupational specialty was that of a rifleman and that he received the Purple Heart. Additionally, his service treatment records show that he sustained multiple fragments wounds from an explosion after he tripped a "booby trap." Accordingly, the Board concedes in-service hazardous noise exposure and finds that Shedden element (2) is met. 38 U.S.C. § 1154 (2012). With regard to the final element of the Shedden analysis-the nexus element, the Board finds that the evidence is at least in equipoise as to whether this element is satisfied. In pertinent part, the October 2013 VA examiner opined that the Veteran's left ear hearing loss was etiologically related to his activity duty service. The examiner also opined that the Veteran's tinnitus was related to his left ear hearing loss. Accordingly, a nexus is established for left ear hearing loss and tinnitus and Shedden element (3) is met. The Board acknowledges the negative nexus opinions provided by the February 2011 VA examiner. The Board notes, however, that, while the examiner based her opinions on the fact that the Veteran did not develop hearing loss/tinnitus on the side of his body that he reported to have experienced the grenade explosion, the examiner failed to consider the effects of the Veteran's other reports of noise exposure, which may adequately explain the cause of his left ear hearing loss. Moreover, the examiner also relied on the fact that the Veteran did not demonstrate hearing loss in-service. However, the Board notes that the absence of a hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Thus, for the reasons discussed, the Board finds the opinions provided by the February 2011 VA examiner's to be of limited probative value. In sum, regarding the Veteran's claims for service connection for left ear hearing loss and tinnitus, the Board finds that the requisite elements of service connection are met. In pertinent part, the evidence establishes that the Veteran has current disabilities of left ear sensorineural hearing loss and tinnitus, that he sustained acoustic trauma in active service, and that the evidence is at least in equipoise as to whether a nexus exists between the in-service acoustic trauma and left ear hearing loss and between in-service acoustic trauma and bilateral tinnitus. Accordingly, reasonable doubt must be resolved in favor of the Veteran, and entitlement to service connection for left ear hearing loss and tinnitus is granted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for left ear hearing loss is granted. Service connection for right ear hearing loss is denied. Service connection for tinnitus is granted. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs